Pearl v. Interstate Securities Co.

Decision Date08 December 1947
Docket Number40317
Citation206 S.W.2d 975,357 Mo. 160
PartiesMarion Pearl d/b/a Economy Auto Sales, Appellant, v. Interstate Securities Company
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court; Hon. John R. James Judge.

Reversed and remanded.

Kenneth H. Sanford and J. W. Buffington for appellants.

(1) There is nothing in the Code of Civil Procedure providing for a motion for a "directed judgment" at the close of plaintiff's case in chief, or at any other time. Code of Civil Procedure, Laws 1943, p. 353 et seq. (2) Plaintiff showed ownership and exclusive right of possession in the cars in question at the time of institution of his suit and at the time of trial thereof. Rankin v. Wyatt, 73 S.W.2d l.c. 768. (3) Plaintiff's evidence showed that defendant took wrongful possession of the cars in question prior to, and at the time of the institution of the suit, and converted the same to its own use. Rosencranz v. Swofford Bros. Dry Goods Co., 175 Mo. 531; Sullivan v Gault, 299 S.W. l.c. 1117; Maxwell v. Durham, 297 S.W. 94; Kalinowski v. Newhouse, 53 S.W.2d 1096. (4) The delivery of the cars in question by plaintiff to the Security Motor Company was conditioned on the payment of the check given plaintiff at the time he delivered the cars to the motor company and on which check payment was refused and possession and right of possession of said cars thereby remained in plaintiff. Johnson-Brinkman Co. v. Central Bank, 116 Mo. l.c. 570; Maxwell v. Dunham, 297 S.W. l.c. 97; Rock Island Plow Co. v. Perry, 20 S.W.2d 956; Farm & Home Savings & Loan Assn. v Stubbs, 98 S.W.2d l.c. 330. (5) The plaintiff's evidence in chief showed right of exclusive possession of said cars at all times in plaintiff and an illegal taking and withholding and conversion of them by the defendant who thereby became and was a mere trespasser constituting a valid and substantial prima facie case for recovery by plaintiff, with no evidence offered by the defendant to the contrary. Cases cited under (3) and (4) supra.

Harry B. Jenkins for respondent.

(1) Under the record, the plaintiff intended to do and did pass title on to his vendee, Security Motor Company, by transferring the titles to the Chevrolet and Buick cars, properly assigned and signed in blank by the owners from whom the plaintiff purchased the cars. Rankin v. Wyatt, 73 S.W.2d l.c. 768; 1 Am. Jur., p. 320; State v. Short, 174 S.W.2d l.c. 823. (2) The acceptance of a check by the plaintiff from his vendee and the delivery by plaintiff of title wherein all parties to the transaction meant to pass title, conveys all title as to third parties whose rights have intervened. Rankin v. Wyatt, 73 S.W.2d l.c. 768; Pettus v. Powers, 185 S.W.2d l.c. 874. (3) A bona fide signature on a certificate of title, without acknowledgment, conveys title for all purposes. 1 Am. Jur., p. 321; State v. Short, 174 S.W.2d l.c. 823; Anderson v. Arnold-Strong Motor Co., 88 S.W.2d l.c. 421; Pettus v. Powers, 185 S.W.2d l.c. 874; Connecticut Fire Ins. Co. v. Cox, 268 S.W. 87; Howell v. Connecticut Fire Ins. Co., 257 S.W. l.c. 181. (4) The plaintiff's evidence showed that he accepted title from Backer on the Chevrolet sued for, signed by Backer but not acknowledged, and from one car dealer, McManama, who had purchased the Buick from one Cunningham who had executed the title in blank, without acknowledgment. Both titles were in blank. This conveyed and passed title. Sec. 5313, R.S. 1939, and cases cited; Murphy v. Holliway, 168 S.W.2d l.c. 113; 7 Blashfield, Cyc. of Automobile Law and Practise, Sec. 4255; Haggerty v. St. Louis Ice Co., 143 Mo. 238. (5) This is a conversion suit. Plaintiff must show, as in a replevin suit, that he is entitled to the immediate, exclusive possession of the property involved. Plaintiff in conversion must recover on the strength of his own title rather than on the weakness of defendant's title. Personal Finance Co. v. Lewis Inv. Co., 138 S.W.2d 655. (6) This plaintiff is attempting to recover from defendant with no strength of title in himself but is attempting to attack the title of defendant and hopes to recover on the weakness of defendant's title, which is not permitted as it is a fundamental rule of law that in replevin or trover plaintiff in order to recover must recover on the strength of his own title and not upon the weakness of defendant's title. Jackson v. Rothschilds, 99 S.W.2d 859; Barnard State Bank v. Lankford, 11 S.W.2d 1084. (7) Plaintiff in conversion must not only show exclusive title in himself but also must show that he is entitled to the immediate exclusive possession of the property. Right to possession is prerequisite to recovery for conversion. St. Louis Catering Co. v. Glancy, 242 S.W. 392.

OPINION

Hyde, J.

Action in two counts, replevin and conversion. Judgment was entered for defendant at close of plaintiff's evidence. Plaintiff appealed to the Kansas City Court of Appeals which affirmed the judgment. [Pearl v. Interstate Securities Co., 198 S.W.2d 867.] We have ordered the case transferred.

A summary of the pleadings and statement of the evidence may be found in the opinion of the Court of Appeals. Plaintiff, a used car dealer in the city of Mexico, purchased two used cars which he drove to the city of Independence to sell to the Security Motor Company (hereinafter called Security) for cash. He took a check for agreed price which he deposited in his bank at Mexico the next morning but which was returned unpaid in about four days. Likewise, on the next morning, Security mortgaged the cars to defendant. At the time of the delivery of the cars, plaintiff also delivered with them, to Security, the title certificates issued by the Commissioner of Motor Vehicles to the original owners from whom plaintiff had purchased them. (We consider the Cunningham deal as a sale to plaintiff because McManama who was with plaintiff at the time, furnished the purchase price for him and took his check which Cunningham would not take; or at least the court could reasonably so find.) The assignment on each certificate was signed by the owner but not acknowledged and no name of a transferee was written therein, this space being left blank. Plaintiff had previously sold used cars to Security buyers at Mexico and had taken its checks therefor; but he had retained the title certificates and attached them to the checks so that they would be delivered to Security only when the checks were paid. Plaintiff said he thought he was protected by leaving the certificates with the assignments signed in blank and without acknowledgments. He said he was a notary and would have completed them if the check had cleared. Soon after the transaction involved herein, a receiver (appointed by the Circuit Court) took charge of Security and both parties filed intervening petitions claiming title to the cars. The receivership was later dismissed and defendant, in whose warehouse the cars had been stored, kept possession of them and obtained new title certificates for them from the Commissioner on affidavit of repossession and chattel mortgage foreclosure.

Plaintiff concedes that he did not have title to the cars, and that title thereto remained in the original owners, because of failure to comply fully with Section 8382(c), R.S. 1939, Mo. Stat. Ann. However, he contends that he was a bailee with a special interest under an implied contract of bailment and that his "right of possession as bailee would be superior to any claimed rights of the defendant, unless it could show superior rights derived from the rightful owners of the cars." Plaintiff says that, since his sale to Security was for cash, he retained constructive possession pending payment of the check; that Security's possession was his possession; and that he was entitled to take actual possession when payment was refused, citing Johnson-Brinkman Co. v. Central Bank, 116 Mo. 558, 22 S.W. 813. [See also Rhodus v. Geatley, 347 Mo. 397, 147 S.W.2d 631, l.c. 638 and authorities therein cited.] He, therefore, claims that at all times he was entitled to the right of possession and that defendant was only a trespasser who wrongfully deprived him of his right of possession, citing Rankin v. Wyatt, 335 Mo. 628, 73 S.W.2d 764; Riss & Co. v. Wallace, 350 Mo. 1208, 171 S.W.2d 641; Quinn v. Gehlert, (Mo. App.), 291 S.W. 138; Sullivan v. Gault, (Mo. App.), 299 S.W. 1116. Rankin v. Wyatt holds that one rightfully in possession of an automobile, but without title because of failure to obtain an assignment of the title certificate in compliance with Section 8382, could maintain replevin against a trespasser taking possession without right. Riss v. Wallace holds that one who claimed to be a purchaser when the certificates of title had never been assigned or delivered to him did not have the right of possession against the owner and holder of the title certificates.

The Court of Appeals held that both parties had violated Section 8382 and that the court should not aid either of them but leave them where it found them. However that principle, which is applied as between parties to an illegal contract, is not in our opinion applicable under the facts of this case. [See 12 Am. Jur. 713-745, Sec's. 209-225; 17 C.J.S. 656-682, Sec's. 272-293.] Haggerty v. Ice Mfg. & Storage Co., 143 Mo. 238, 44 S.W. 1114, relied on by the Court of Appeals, was a suit on a contract for damages for nonperformance. Plaintiff herein is not seeking to enforce any contract against defendant. He bases his right of possession on his claim that he had the right to the possession of the cars derived from their true owners, and that defendant got no right, title or interest of any kind in them because it did not deal with any one who had any right to give to it. Even between parties to an illegal contract,...

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8 cases
  • Seward v. Evrard
    • United States
    • Missouri Court of Appeals
    • 1 Julio 1949
    ...J. S. 325, Sec. 103, p. 340, Sec. 104 (C), 322, Sec. 101, p. 323, Sec. 102, 19 Am. Jur. 696; 42 C. J. 751, Sec. 242; Pearl v. Interstate Securities Co., 206 S.W. 2d 975; Peper v. American Exchange Nat. Bank in St. 210 S.W. 2d 41. (3) Appellant who purchased the personal property of responde......
  • Peper v. American Exchange Nat. Bank in St. Louis
    • United States
    • Missouri Supreme Court
    • 8 Marzo 1948
    ...of Appeals where the judgment of the trial court was affirmed, but the cause was transferred as stated. The opinion by this court in the Pearl case holds that Security Motor Company got no title to the two cars and therefore had no title to mortgage to the Interstate Securities Company. Sec......
  • Mackie and Williams Food Stores v. Anchor Casualty Co.
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 20 Octubre 1954
    ...Cox case held that such claim had not "ripened into a title" by reason of failure to comply with the statute. In Pearl v. Interstate Securities Co., 357 Mo. 160, 206 S.W.2d 975, Pearl, a used car dealer, purchased two used cars and obtained unacknowledged certificates of title to them from ......
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    ... ... between the last assignee of title and the person from whom the vehicle was being purchased, Pearl v. Interstate Securities, 357 Mo. 160, 206 S.W.2d 975, 977(2, 5) (1947); Allstate Ins. Co. v ... ...
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